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David Bates
+ About David Bates

David Bates is an Executive Counsel & Team Leader at Harmers Workplace Lawyers, where he works across all of the firm's practice areas. Prior to his appointment in August 2017, David was the Managing Director of a leading, online, subscription-based employment relations service where he provided a wide range of strategic, practical and plain-English advice to Australian business owners and operators.

David gained his BA (Government) from the University of Queensland in 1998 before going on to complete a Law degree, with Honours, in 2001. He began his career working for a large, blue-collar union before moving to Canada and then the United Kingdom, where he was employed by both the Commission for Racial Equality and its successor, the UK Equality and Human Rights Commission.

David routinely represents parties in Fair Work-related proceedings and is available to assist clients with all aspects of employment law-related compliance and best-practice. David is also an accomplished and highly sought-after public speaker who facilitates dynamic, informative and highly interactive workshops on all aspects of Australian employment law.

Unfair dismissal: 7 things you need to know.

Thursday, September 20, 2018

Many employers will be familiar with the sinking feeling that inevitably accompanies receipt of an unexpected email from the Fair Work Commission (“Commission”). Just when you thought you could finally put an unpleasant employee experience behind you, you’re sent a copy of their unfair dismissal application.

Once received, employers are expected to respond to the application, within seven days, using the Commission’s Form F3 (‘Employer’s Response to Unfair Dismissal Application’). It’s at this stage that many employers then contact their lawyer for advice and assistance.

One of the most common questions we receive from clients facing an unfair dismissal is ‘what on earth is a jurisdictional objection?’. This enquiry is usually prompted by question 2.1 on the Form F3 that asks: “Do you have any jurisdictional or other objection(s) to the application?”

At its simplest, this question is really asking the employer whether they agree the employee is, in fact, legally-entitled to pursue their unfair dismissal claim. 

There are, in fact, a number of requirements that must be met by an employee before they become entitled to claim unfair dismissal, and this question provides employers with an important opportunity to challenge the legal validity of the application. 

You may then be asking: ‘what are the grounds for objecting to a claim?’. Helpfully, question 2.2 on the Form F3 lists each of these in turn. There are 7 of them so let’s take a closer look:

1. Was the application lodged ‘out of time’? Employees must file their unfair dismissal claim within 21 days of their dismissal taking effect. If it was lodged after that deadline, the employer can object and the employee will then be required to prove there were ‘exceptional circumstances’ which justify an extension to the filing deadline.

2. Was the applicant an ‘employee’? Only employees are protected from unfair dismissal. So, if the applicant was an independent contractor (or anything other than an employee), this is your chance to let the Commission know.

3. Was the applicant actually dismissed? Only an employee who was dismissed at the employer’s initiative can bring a claim for unfair dismissal. This means if the employee voluntarily resigned, you should make this clear in your response.

4. Was the applicant made ‘genuinely redundant’? A redundancy which meets all of the Fair Work Act 2009’s requirements of ‘genuineness’ is not an unfair dismissal. If you’ve met all these requirements, make sure the Commission knows it.

5. Did the employee meet the ‘minimum employment period’? An employee only becomes protected from unfair dismissal once:

(i) they have been employed by a small business (one with fewer than 15 employees) for at least 12 months; or

(ii) they have been employed by a business with 15 or more employees for at least 6 months.

If the applicant doesn’t meet this requirement, you can object.

6. Was the applicant being paid more than the ‘High Income Threshold’ (HIT)? An employee who earns more than the HIT is not able to bring an unfair dismissal claim unless they are also covered by a Modern Award or an Enterprise Agreement. The HIT is adjusted each year by the Commission, and is currently set at $145,400 p/a. Compulsory super contributions are excluded from the calculation of the HIT, but the agreed monetary value of other guaranteed entitlements (such as a company car) must be included.

7. If your business is a ‘small business’, was the dismissal consistent with the Small Business Fair Dismissal Code? Many small business employers remain unaware that by carefully following the Code when dismissing an employee, any subsequent unfair dismissal claim can be quite easily defended. You can download the Code here.

Understanding and relying on the above objections to unfair dismissal claims can save employers considerable amounts of time, worry, and money!

 

3 things you must know about adverse action claims

Wednesday, September 12, 2018

I’m currently ‘on the road’ speaking at a series of employment law conferences being held in capital cities around the country. The title of my presentation is ‘Defending General Protections Claims’ and, as the heading suggests, my session focuses on the steps employers can take to fend off an allegation of so-called ‘adverse action’.

Despite the Fair Work Act 2009 (“Act”) having now been in operation for almost a decade, surprisingly few employers are as familiar with the ‘General Protection’ provisions as they are with, say, the unfair dismissal provisions or the National Employment Standards (NES). So this week, I’ve decided to share the top 3 things every employer needs to know about adverse action claims.

1. You can’t take adverse action because of a workplace right

Part 3-1 of the Act brings together a disparate range of entitlements under the heading ‘workplace rights’, and prohibits employers from taking (or threatening to take) ‘adverse action’ against someone because they exercise (or seek to exercise) one of their protected workplace rights. Examples of ‘adverse action’ include – but are certainly not limited to: demoting, suspending, or terminating an employee.

‘Workplace rights’ is given a very broad definition, and so is the concept of ‘adverse action’. This means a huge range of common day-to-day situations can give rise to an ‘adverse action’ claim. 

2. There is a reverse onus of proof

Many employers are very surprised (read: seriously alarmed!) to learn that adverse action claims are subject to a reverse onus of proof. If someone claims they’re a victim of adverse action, it is the respondent’s responsibility to disprove that allegation.

Compare that with, say, unfair dismissal or unlawful termination claims, where it is up to the aggrieved ex-employee to prove their dismissal was unfair or unlawful. The reversal of the onus of proof in adverse action claims means those who are accused must scramble to find records, notes, correspondence (and witnesses) which will prove decisions were made - or actions taken - for reasons other than the existence of a workplace right. 

3. Almost anyone can make an application

Most employers know employees are not protected from unfair dismissal until they have completed the applicable ‘minimum employment period’. This is 12 months for small businesses, and 6 months in all other cases.

Compare that with adverse action claims, which can be brought by:

Any current employee against their employer

Any prospective employee against their prospective employer

A currently-engaged independent contractor against their principal

A prospective independent contractor against their prospective principal

A principal against their independent contractor

An employer against their employee (!)

A person against an industrial association, or an officer or member of that association.

Phew! As you can see, the net has been cast very wide here, and it pays to make sure you’re not at risk of an expensive and time consuming adverse action claim any time soon.

 

All I’m asking is for a little R-E-S-P-E-C-T

Wednesday, September 05, 2018

Unlike the music of the late Aretha Franklin, following the law can be dull and downright frustrating. Near my home, roadworks have been going on for many months and the usual 80km speed limit has been reduced to 60km for what seems an eternity. 

This reduced speed limit means I need to allow more time when driving to meetings or hearings. And it means cars driving so close to my rear bumper that we’d both be doomed if I stopped unexpectedly. But no matter how unjustified I think the new speed limit is, and no matter my personal views on slowing down traffic (even when no roadwork is actually being done!), I drive at 60km because that’s the law, and I respect it.

When it comes to our nation’s employment laws, the Australian Council of Trade Unions (ACTU), along with some (but certainly not all) individual unions, appear to have little respect. Shortly after taking over as Secretary of the ACTU in 2017, Sally McManus proudly announced:

"I believe in the rule of law when the law is fair and the law is right…But when it's unjust I don't think there's a problem with breaking it.”

Note that Ms McManus reserves the right to decide for herself whether a law is ‘just’ or ‘unjust’ and, therefore, whether it should be followed or blatantly ignored. Imagine for a moment if employers adopted the ‘McManus Approach’ to the rule of law:

The local shopkeeper learns the Fair Work Commission has announced an annual increase to minimum wages. But she believes it’s ‘unjust’ for her workers to get a pay rise when business isn’t going so well, so she’ll keep paying her workers the old minimum rate.

The accounting firm up the road finds out their receptionist is pregnant and will be taking parental leave. The partners meet and decide it’s ‘unjust’ for them to have to keep her job open for her to return to for up to two years, so they fire her instead.

A building contractor loses an unfair dismissal case filed against them by a former employee. The Fair Work Commission has ordered the business to reinstate the worker. The owner feels the decision is ‘unjust’, so he just ignores it.

According to the McManus Approach, all these scenarios would be perfectly acceptable provided the employer genuinely felt the law was unjust. Remember: “When it’s unjust, I don’t think there’s a problem with breaking it.”

But we all know how the ACTU would likely react to any employer behaving this way. There would be outrage, public shaming and – ironically – legal action.

The law is the law is the law. If you don’t like what the independent umpire decides, appeal it. If you don’t like the Act as drafted, amend or repeal it. If you don’t like the rules, change them.

But no one – whether it’s the ACTU or an employer – has the right to decide for themself which laws are ‘unjust’ and can simply be ignored. Such disrespect for our parliaments and our courts should never be allowed to influence the legitimate debate we need to have about our nation’s employment laws.

 

Workplace relations back on the table

Wednesday, August 29, 2018

What a week it’s been! Since I wrote my last blog just seven days ago, Australia has a new Prime Minister and a refreshed Cabinet. And sitting at that new-look Cabinet table will be Victorian MP, Kelly O’Dwyer, the new Minister for Industrial Relations.

Many readers will be surprised to learn that the critical industrial relations portfolio was previously – and rather quietly - dumped from Cabinet and moved to the outer-Ministry.

That a Coalition Government in this day and age would consider industrial relations less important than other Cabinet-level portfolios is bizarre in itself. But when you consider our last federal election was a double dissolution election triggered by the failure of the Senate to pass a key piece of industrial relations legislation (the restoration of the Australian Building and Construction Commission – ABCC), the decision to dump industrial relation from Cabinet-level consideration was, quite frankly, farcical.

And don’t forget all we now know, as a consequence of the Royal Commission into Trade Union Corruption and Governance. Thanks to Commissioner Heydon, a bright light has been shone into some very dark (and deeply-incompetent and corrupt) places.

Given all the above, industrial relations should be at the front and centre of almost every Cabinet-level deliberation.

The appointment of Kelly O’Dwyer as the new Minister for this portfolio – and the (re)elevation of this vital portfolio to Cabinet is good news for employers and employees alike. But the clock is ticking and there is no time to waste.

Our current system of workplace regulations, rights, and entitlements is comprised of a complex mix of State, territory, and Commonwealth laws, which leaves much to be desired.

Employers – particularly those running small to medium sized businesses – feel over-regulated and under-valued. Meanwhile, employees who fall victim to unscrupulous bosses or unlawful conduct (such as sexual harassment and bullying) all-too-often find themselves overwhelmed by difficult jurisdictional options and crippling legal costs.

Much can be done by the incoming Minister to make the system work better for everyone.

 

Mate or workmate? Boss or buddy?

Wednesday, August 22, 2018

Once upon a time, workers finished their day at around 5 or 6, turned off their desk lamp or punched a timeclock and headed home. Once there, they relaxed with family or friends and didn’t think much about work until they arrived back at their workplace the following morning.

Now fast forward to 2018. We listen to voicemails, return client calls and read text messages during the journey to and from work. We log on to our work emails on the couch, at the airport, on the treadmill, and almost daily while on ‘holiday’.

And we now socialise with our colleagues over lunch, or at drinks on Friday or, increasingly, online via social media.

At some point, the clear line that separated ‘home’ and ‘work’ became remarkably blurred, and our ‘work colleagues’ suddenly became our ‘friends’ on Facebook or our followers on Twitter.

And all these changes can lead to potential HR disaster.

Take for example some of the cases we’ve seen come through the courts and the Fair Work Commission in recent years:

-          the employee dismissed for Facebook posts in which he threatened to physically harm a work colleague;

-          workers being relentlessly bullied via text message and email;

-          people and businesses being defamed by posts on websites; and

-          employers and employees being sexually-harassed at work-related functions.

The reality is that in this increasingly-connected world, creating professional boundaries in our workplaces is more important than ever before.

Having good workplace policies is a great place to start. These policies should make it clear that the same respect that employees are expected to show when they interact in person at the office also applies to their online communications.

Good policies will also explain that the standard of behavior expected at work also applies at work-related events, such as Friday drinks or the office Christmas party. And they might even remind managers that it is often unwise to accept online ‘friend’ requests from those they manage at work, lest those employees start to think of their boss as a buddy.

But above all else, managers need to lead by example because the conduct we display – or worse, ignore - is the conduct we condone.

 

Before you fire someone, read these tips!

Wednesday, August 15, 2018

by David Bates

Dismissing an employee can be one of the hardest things we ever have to do as employers. While paying bills, keeping clients happy and monitoring cashflow can all be hard work, nothing comes close to the stress, anxiety and other emotions that arise when it’s time to let someone go.

Often though, the fear of firing is so great that we allow things to slide for too long. We hope things might improve on their own, or that the employee in question might even decide to move on before we have to show them the door. But putting off the hard decisions rarely helps anyone, including the employee, their co-workers, or your business. So here are the some key things to keep in mind if you do need to bid someone farewell:

1. Consider all the possible claims

Before you confirm a decision to dismiss someone, always take some time to carefully consider all the possible claims the employee may be able to bring against you and your business. Possible claims include:

  • Unfair dismissal
  • Adverse action
  • Unlawful termination, and
  • Discrimination

Different eligibility criteria apply to each of these claims, so it’s important to do your research – or obtain expert advice – if you’re unsure.

2. Investigate properly

If the dismissal arises from a particular incident or allegation, make sure you undertake a thorough, impartial and fair investigation before you reach any conclusions. Our team was recently asked to assist in an investigation where the employer had previously called-in a former police offer who, when interviewing employees, told them they were only allowed to answer questions with a ‘yes’ or a ‘no’. That is not an acceptable approach and does not meet the requirements of natural justice expected by the tribunal.

3. Provide an opportunity to respond

It’s not enough to simply have a good reason to dismiss someone – you also need to put that reason to the employee and ask for their response before you reach a final decision to terminate their employment. Failing to take this small – but crucial – step is likely to result in your dismissal being found to be ‘unfair’.

4. Provide Notice

If when all is said and done you decide dismissal is the way to go, make sure you provide the employee with the applicable notice period. The amount you’ll need to provide is determined by the National Employment Standards (NES), or by the employee’s contract, Modern Award or Enterprise Agreement if these are more generous. Remember though, if the dismissal is a result of ‘serious misconduct’, you’re not required to provide notice.

There’s a lot more to consider, but the above key points will ensure you’re heading in the right direction.

 

Before you fire someone, read these tips!

Wednesday, August 15, 2018

Dismissing an employee can be one of the hardest things we ever have to do as employers. While paying bills, keeping clients happy and monitoring cashflow can all be hard work, nothing comes close to the stress, anxiety and other emotions that arise when it’s time to let someone go.

Often though, the fear of firing is so great that we allow things to slide for too long. We hope things might improve on their own, or that the employee in question might even decide to move on before we have to show them the door. But putting off the hard decisions rarely helps anyone, including the employee, their co-workers, or your business. So here are the some key things to keep in mind if you do need to bid someone farewell:

1. Consider all the possible claims

Before you confirm a decision to dismiss someone, always take some time to carefully consider all the possible claims the employee may be able to bring against you and your business. Possible claims include:

  • Unfair dismissal
  • Adverse action
  • Unlawful termination, and
  • Discrimination

Different eligibility criteria apply to each of these claims, so it’s important to do your research – or obtain expert advice – if you’re unsure.

2. Investigate properly

If the dismissal arises from a particular incident or allegation, make sure you undertake a thorough, impartial and fair investigation before you reach any conclusions. Our team was recently asked to assist in an investigation where the employer had previously called-in a former police offer who, when interviewing employees, told them they were only allowed to answer questions with a ‘yes’ or a ‘no’. That is not an acceptable approach and does not meet the requirements of natural justice expected by the tribunal.

3. Provide an opportunity to respond

It’s not enough to simply have a good reason to dismiss someone – you also need to put that reason to the employee and ask for their response before you reach a final decision to terminate their employment. Failing to take this small – but crucial – step is likely to result in your dismissal being found to be ‘unfair’.

4. Provide Notice

If when all is said and done you decide dismissal is the way to go, make sure you provide the employee with the applicable notice period. The amount you’ll need to provide is determined by the National Employment Standards (NES), or by the employee’s contract, Modern Award or Enterprise Agreement if these are more generous. Remember though, if the dismissal is a result of ‘serious misconduct’, you’re not required to provide notice.

There’s a lot more to consider, but the above key points will ensure you’re heading in the right direction.

 

The shocking surprises that confront new employers

Wednesday, August 08, 2018

Imagine for a moment you’re one of those migrants Australians appear to overwhelmingly endorse: the entrepreneur who comes to our country looking to start a business, employ people, and pay their fair share in tax.

If you’re a savvy migrant, you’d seek out expert advice before you decide to invest in your business and open-up shop. You might, for example, engage a conveyancer or commercial property expert to look over your contract for sale or lease before you sign on the dotted line.

You might instruct an accountant to register your business for GST and take care of your financial reporting obligations. And you might speak to a broker about insuring your business and your livelihood.

But if you’re a really savvy migrant, you’d also speak to an employment law expert before you place your ‘position vacant’ ad online. ‘Why would you need to do that?’, you might (quite reasonably) ask. I mean, how hard can it possibly be? Perhaps you were an employer in another English-speaking country (think Canada, the UK, or even New Zealand), and therefore think hiring and firing is relatively straight forward.

Think again.

First, there’s Australia’s unbelievably complex system of 122 Modern Awards. Which one applies to your employees? Is there more than one which could apply? What’s all this about ‘classifying’ employees? And what’s the difference between ‘ordinary hours’, ‘overtime’, ‘reasonable additional hours’, ‘penalty rates’ (have I done something wrong?!), and ‘loadings’?

Second, there’s the ten National Employment Standards (NES). Clear about the difference between Emergency Management Activity Leave and Jury Service Leave? Sure you’re not asking your employees to work ‘unreasonable hours’? Confident about when you can ask for a medical certificate or turn down a request for ‘flexible working arrangements’?

Third, there’s all the different claims your new employees can bring against you if you eventually decide they’re not up to the job. Running a small business? They’ll be protected from ‘unfair dismissal’ after 12 months. And regardless of how many employees you have, everyone you hire is eligible to bring an ‘adverse action’, ‘discrimination’ or ‘bullying’ claim from the moment they start (and in some cases, even before that!).

Having read the above, perhaps you’ve decided the smart thing to do is just engage people as independent contractors instead. Sadly, that could end in legal tragedy because you’ll likely be in breach of the ‘sham contracting’ provisions contained in the Fair Work Act.

Maybe now you’re reconsidering opening that business at all!

The Australian Council of Trade Unions is right about one thing: we do need to ‘change the rules’. But the change we need is the simplification and streamlining of our often-inflexible and expensive workplace relations system so that it works for both employers and employees.

Right now, those who most need protecting often feel abandoned or overwhelmed, those who want to open a business don’t, and those who are trying to do the right thing find it almost impossible to comply with all their obligations.

Surely we can do better than this?

 

 

Law change gives Australians five days off a year for domestic violence

Wednesday, August 01, 2018

Most Australian employers remain blissfully unaware that the nation’s unique system of complex (and often nearly-incomprehensible) ‘Modern Awards’ is being constantly reviewed and revised by the employment tribunal, the Fair Work Commission.

Just when employers thought they might finally be getting their heads around what must surely be some of the most complicated employment laws in the free world, along comes another round of changes. This time though, the ends at least justify the short-term inconvenience further changes will inevitably cause.

From 1 August, employees covered by industry or occupation-based Modern Awards have an entitlement to five days of unpaid ‘family and domestic violence leave’ per year. This new leave entitlement can be accessed by almost all Award-covered employees – including casuals – whenever they need time to deal with the impact of family or domestic violence.

‘Family and domestic violence’ is defined as meaning violent, threatening or other abusive behaviour by a member of the employee’s family that: (a) seeks to coerce or control the employee; or (b) causes them harm or fear.

Examples of when this form of leave can be taken include (but are certainly not limited to) times when an employee: is seeking emergency refuge or shelter; attends a police station or court proceedings; is ensuring a family member is safe from family or domestic violence.

This new form of leave is not cumulative from year-to-year and, as noted above, is unpaid. As with other forms of leave (such as personal/carer’s leave), employers can ask their employee for evidence to support their need to take leave, such as a medical or police report or a statutory declaration.

It’s important to emphasise that, for now, this new entitlement only applies to employees covered by industry or occupation-based Awards. This means employees who are Award-free; or covered by an Enterprise Award; or covered by an Enterprise Agreement; do not become automatically entitled to family and domestic violence leave at this time (unless their own contract, Enterprise Award or Enterprise Agreement already provides this entitlement).

The Commonwealth Government has, however, committed to enshrining family and domestic violence leave into the Fair Work Act 2009 and, once this happens, all employees will gain access to this form of leave.

Family and domestic violence leave will no doubt be a huge help to those who experience this terrible scourge. But it’s a sad reflection on our society that we need this form of leave at all.

 

 

 

The blurring line between work and play

Wednesday, July 25, 2018

A generation ago, the line between “the workplace” and an employee’s “personal life” was much clearer. Workers generally discussed work-related matters in “the office”, then went home at the end of the day to tend to their personal and domestic lives.

Even when work encroached late into the evening or on a weekend, it was generally “paperwork”, completed alone in a home study or office, with no direct “connection” to the workplace available (apart from a clunky telephone with a rotary dial – remember those?!).

Nowadays, the distinction between a person’s working life and personal life is a legal and professional grey zone. Workers routinely check their work email on mobile devices as they shuttle between appointments and their children’s play dates on the weekend.

We log in while at home and on holidays “just to keep on top of things” and thereby avoid the nightmare of the 1000 unopened emails when we arrive back at the office on a Monday morning.

We post comments, share opinions, and upload photographs on Facebook, Linkedin, Twitter and Instagram profiles which mention our profession or occupation and, in some cases, even identify our specific employer.

And of course we socialise more with our workmates these days – think Friday drinks, the birthday dinner, and the office Christmas party (note: employment lawyers are often busy in January cleaning up Christmas Party catastrophes!).

This ever-blurring line between work and play has serious consequences for both employers and employees. For example, employers face the prospect of workers’ compensation claims arising from activities conducted outside the physical workspace, but which are nonetheless undertaken in the “course of employment”.

For employees, there is the heightened risk of disciplinary action (including the possibility of dismissal) for misconduct which takes place at work-related get togethers when workplace policies – such as those which prohibit bullying or harassment – still apply with full force.

And of course, there’s also the darker side of the “connected generation”: the relentless cyber-bullying from work colleagues that can drag on into personal time late at night, on weekends, and on leave, and which can quickly damage physical and psychological health.

Australia’s employers and employees need to be much, much smarter about the risks created by our ever-more-connected society. Rolling out robust policies and employment contracts is a good start, and supplementing these with training in the workplace is even better.

After all, you may be just one tweet away from HR disaster.

Watch David's interview with Peter Switzer on this topic here.

 

 

 

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